Eminent Domine: Years later, family brews over seized home State, county used eminent domain, didn&#39;t finish work

Years later, family brews over seized homeState, county used eminent domain, didn't finish work

October 08, 2006 Star-Ledger

One day in 1981, Barbara Fuller looked out the window of her Monmouth County home and saw a surveyor in the yard.

He worked for the state Department of Transportation and was mapping a realignment of Oceanport Avenue that would take it through Fuller's dining room. DOT eventually used its powers of eminent domain to seize her property, along with three neighboring ones, including a house owned by her aunt, Agnes Zager.

The road project never materialized.

Fuller moved elsewhere in the neighborhood and drives by the grass lot where her house stood almost daily. A lawyer negotiated a deal that allowed Zager to stay in her house, which is still standing, and she paid rent to the state until the day she died.

After Zager's death in January, another family member, still smarting from the treatment of his aunt, dashed off a letter to officials asking that they sell the house back to the family.

In the ensuing flurry of letters, the relative learned what many property rights activists already know -- that New Jersey's eminent domain laws are so stacked against landowners that reversals seldom occur.

The use of eminent domain by government exploded last year in New Jersey, its alleged abuses prompting then-gubernatorial candidate Jon S. Corzine to vow a crackdown and a detailed legislative review of the practice. That discussion focused on towns that use their powers to seize property and turn it over to private developers.

In Oceanport, what happened was a much more pedestrian type of taking for "public good." Such condemnations occur frequently in a densely populated state running out of room for highways, roads, schools and parks.

What makes the case unusual, however, is the failure of the state and Monmouth County officials to finish the road project and the refusal of a family member to let go.

Charles Prothero, the relative who suggested Zager's property be returned to the family, said his aunt never got over the fear she'd be evicted from her Oceanport home.

"She was panic-stricken when it first happened, because she was recently widowed and had nowhere to go," said Prothero, a retired lawyer from Glen Ridge. "She lived in fear of losing her home for the rest of her life."

Prothero grew up in the house his niece, Fuller, later purchased but lost to DOT, and part of his desire to get Zager's house back is nostalgic memories of Sunday family dinners.

He said a third family house was either seized or purchased when Monmouth Park Raceway was built in 1945. Today, a grass lot beside the track parking fields is all that is left of his boyhood home.

Zager's house has been boarded up by Monmouth County, which took possession of the property from DOT. The road realignment has been on the county's master plan for decades, according to County Engineer Joseph Ettore.

Ettore was apologetic about the uncertainty the state and county introduced into Zager's life, but he argued it makes little sense to return the house to the family now.

With federal officials closing nearby Fort Monmouth -- and developers salivating at the chance to build thousands of houses there -- the realignment project makes more sense than ever, he said.

"The county has always taken the impacts on property owners very seriously and does everything reasonable to mitigate them," Ettore said. "But we feel it is not in the best interests of all county residents to vacate or sell the property given the obvious changes that will happen in the coming years in that immediate area."

Prothero said he had been hopeful the house and its furnishings could have been left intact.

"At this point, I guess I can see it would be pretty difficult to reverse," he conceded. "But it was such a horrendous, senseless thing, such a pointless thing to take someone's house and sit on it and do nothing, that I felt someone should know."

James J. Cleary, a lawyer in Matawan who researched the case for the county, said the law is clear.

Even if the county was inclined to sell the property, he said, it would have to auction it off. When it seized the property, DOT deposited $56,000 with the court to cover the purchase price.

"Taxpayers paid for the property, and the county has to do everything in its power to recover the funds," Cleary said.

He noted that neither the state nor the county raised Zager's rent of $140 a month, which was far below market prices at the time she died.

Prothero said both officials seem to be missing the point.

"The house has been sitting there for 20 years in their possession, and they've done nothing with it," Prothero said. "Why can't we have it back?"